Norms Of Labor Law Research Articles

Sportsman’s employment contract: problematic issues and prospects for their solution

Individual contractual regulation, which reflects the real needs of the development of relations between an employee-athlete and an employer-sports organization, plays an important role in regulating the labor activities of athletes. Thus, the employment contract concluded with an athlete contains a number of conditions that objectively and significantly individualize his work, i.e. conditions inherent only to this category of employees. Moreover, it enshrines differential conditions for each specifically defined employee­athlete. The purpose of the article is to consider the specifics of the labor contract concluded between an employee-athlete and an employer­sports organization. It was concluded that the labor relations of a professional athlete should be regulated precisely by the norms of labor law and a special law on professional sports, which regulates the entire complex of relations between the state and participants in professional sports, although today there are opinions that the work of professional athletes should be provided with the help of civil - legal regulation. It is noted that, as of today, the main national law in the field of sports - the Law «On physical culture and sports» dated 12.24.1993 concerns only the general foundations of activities in the field of physical culture and sports, at the same time, it does not even contain an acceptable definition of such a concept as «labor contract with a professional athlete». Therefore, it is proposed to supplement the specified Law with a norm to provide for the definition of an employment contract with a professional athlete. In particular, as an employment agreement between an employee­athlete and an employer-sports organization with all appendices, changes and additions, concluded in accordance with the legislation of Ukraine, on the basis of which labor relations arise regarding the preparation and participation of the athlete in competitions for a monetary reward paid by the club. At the same time, in addition to defining and enshrining at the legislative level the concept of an athlete’s employment contract, the proposal to develop a standard form of contract with athletes of various sports was supported, the development of which should be based on the main directions of the joint sports activities of the athlete and the sports organization, which directly consists in the preparation athlete to a successful performance at competitions.

The value of formally undefined norms in the national legislation approximation to EU labour standards: The case of Ukraine

AbstractThis paper aims to show the importance of a correct understanding of formally undefined EU labour law norms for the successful European integration of Ukraine. The analysis focuses on legal acts of the European Union. The drawbacks of the inequality of approaches to determining the content of norms with evaluative concepts are highlighted, as is the need to use doctrinal recommendations for the application of evaluative provisions with the purpose of preventing the misconception that evaluative concepts can be interpreted as, and to whom, it pleases. This article thus demonstrates the necessity of the analysis of the case-law of the Court of Justice of the EU, which is rich in the interpretation of evaluative concepts and is considered to help clarify the meaning of many terms of labour law, which, due to their undefined formulation, may cause difficulties in implementing them in the legal system of Ukraine.

Facilitating the transition to formal economy by means of labor law and social security law

The article is devoted to the search for a solution to such an acute and urgent problem of modern society as the informal economy, which has an adverse impact both on the state and its financial instruments, and on the population employed in it. Analyzing the norms of Labor Law and Social Security Law, the authors evaluate the current legal regulation through the prism of its focus on the transition to formal employment and the economy. Taking into account the peculiarities of informal employment, they propose ways to improve labor and social security legislation.

Компенсация морального вреда по трудовым спорам в Беларуси и России

The article provides a comparative analysis of current issues of compensation for moral damage in labor disputes in the Russian Federation and the Republic of Belarus. The authors explore the concept of moral damage, the legal terminology used in legislation, and identify discrepancies and gaps in the legal regulation of relations for the protection of intangible benefits in labor relations. Based on comparative legal analysis, proposals are made to harmonize the norms of labor law in the Russian Federation and the Republic of Belarus on compensation for moral damage when considering labor disputes.

Consequences of the Expiration of an Employment Contract: Theory and Practice

On the example of judicial practice, the theoretical issues of the implementation of labor law norms on a fixed-term employment contract are considered.

Нововведения в регулировании дистанционной работы в Узбекистане, Кыргызстане и Беларуси: сравнение с опытом Казахстана и России

The article analyzes the innovations introduced into the Labor Code of Uzbekistan, the Labor Code of Kyrgyzstan and the Labor Code of Belarus in 2022–2023, related with regulating the differences of remote work. A comparison is made with the Labor Code of Kazakhstan and the Labor Code of Russia. The author made conclusions regarding the strengths and weaknesses of the new labor law norms. Directions for further harmonization of standards on remote work have been outlined.

«Безопасность» или «охрана» труда как основа построения законодательства о защите жизни и здоровья работников

A comparative analysis of the categories “labor safety” and “labor protection” as a fundamental basis for the formation of labor law norms is carried out. The International Labor Organization considers the concept of “safety and health at work” a priority. In Russia, labor law was formed using the basic concept of “labor protection”. The Labor Code of the Russian Federation understands labor safety too narrowly — only as the protection of persons working in special conditions. The proposals of scientists to replace the concept of “labor protection” with “labor safety” in the norms of the Labor Code of the Russian Federation are recognized as erroneous. In the interests of expanding the boundaries of protecting the rights of workers, it is proposed to legally recognize safety and labor protection as coinciding concepts and build the regulation of labor relations on this basis.

Problems of differentiation in the codes of labor laws of the RSFSR and the Labor Code of the Russian Federation

The article addresses the problem of codification of special labor law norms, justifies the importance of their consolidation in the sectoral code. The domestic historical experience of codification through the prism of differentiation is investigated. Trends in the differentiation of legal regulation of labor relations in the modern period are analyzed. The shortcomings of the Labor Code of the Russian Federation in terms of labor regulation of certain categories of employees are shown, options for solving this problem are considered. The need for differentiation in a codified act of labor law is due to the nature of labor in certain areas, as well as the special concern of the state for certain groups of employees. The Code is the main sectoral act, it must contain special norms in order to meet the requirements of completeness and consistency. In the four Russian labor codes, the issue of differentiation was resolved in different ways. With each new codification, the legislator, relying on the experience gained, approached this issue more consistently, while there was also a «field» for criticism. The task of optimal construction of special labor and legal norms is also relevant for the Labor Code of the Russian Federation, in modern conditions the relevance increases due to the increase in atypical employment. It is important, retaining in the codified act a special chapter on the features of labor, to establish uniform approaches to its regulation in relation to the main professional groups and spheres. At the same time, it is inappropriate to reflect in the code the features of labor affecting the specialization of a particular profession, turning the act of codification into a collection of instructions. The legislator should also consider the issue of consolidation in art. 2 of the Labor Code of the Russian Federation, devoted to the principles of legal regulation of labor relations, the principle of differentiation.

Features of the labour of medical and pharmaceutical workers

Relevance. The relevance of the conducted study is due to the rather low level of development of the healthcare system in Kazakhstan, in connection with which problematic aspects arise in the segment of labour relations in this industry. Purpose. The purpose of the study is to analyse the regulatory legal acts of Kazakhstan on the legal regulation of the labour of medical and pharmaceutical workers. Methodology. Such methods as logical analysis, functional analysis, deduction, dogmatic, formal-legal were used. Results. It was identified that at this stage Kazakhstan ranks last in terms of financing the health sector among 63 countries according to the World Health Organisation. It was also noted that salaries of medical and pharmaceutical workers are declining. The consequence of this is that most of the latter can emigrate to countries with more acceptable socio-economic conditions. An analysis of the legislative doctrines of foreign countries, namely France, Germany, and Sweden, was conducted. This provided an opportunity to identify the most acceptable factors and norms of labour law that allow ensuring a high level of functioning of the healthcare system in general and conditions for medical and pharmaceutical workers. Collisions of the fixed norms of Kazakhstan were also noted. Conclusions. The obtained results provided an opportunity to highlight problematic aspects of labour law in the examined industry, which helped to identify several recommendations that will improve the current legislation and increase the level of functioning of the healthcare system in general and allow Kazakhstan to reach a higher level in the international arena. Keywords: legal regulation; legislation; comparative analysis; differentiation; qualifications; status

The Nature of Gaps in Russian Legal Acts on Labor and Labor Law

The nature of gaps in Russian legal acts on labor and labor law is analyzed, the analysis of scientific points of view on the nature of gaps in labor law is carried out. The article criticizes scientific approaches based on legal positivism, as well as on the scientific and debatable concept of integrative legal understanding, in which the nature of gaps in labor law is traditionally revealed using the terms “labor legislation”, “labor law norms”, as well as social regulators of actual social relations and moral categories. The author’s conclusions and proposals are formulated from the position of the scientifically grounded concept of integrative legal understanding. In particular, it is concluded that the real gaps exist not in labor law, but in national legal acts in the field of labor. There is usually no gap in labor law if there are principles and norms of labor law applicable to the disputed legal situation contained in the unified system of forms of labor law implemented in the Russian Federation. The author’s proposals for changing certain norms of the Labor Code of the Russian Federation are formulated.

Problems of Combining Public and Private Interests in Kazakhstan Labour Legislation

The article analyses the issues of combining public and private interests in Kazakhstan labour legislation through the prism of law regulation method of social-labour relations. It is noted that since the entry into force of the Labour Code of the Kazakhstan Republic (1 January 2016) there have since been over 200 amendments and modifications, but the legislators have failed to expand the scope of contractual regulation that takes into account the private interests of employees. This is illustrated by the specific norms of the Labour Code analysed in this article. It is concluded that the public interests implicit in the norms of labour law should be conditioned only by the need to protect private interests of employees.

Professional risk as a sustainable development of labor protection

The changes concerning labor protection are significant for labor legislation. Questions of the application of legislation that arise in practice appear not only when developing documents and ensuring labor protection in an organization, but also when conducting supervisory measures by the State Labor Inspectorate in relation to educational organizations of higher education. During the inspections, violations of labor legislation related to labor safety may be revealed. Safety is the state of protection of subjects of labor law (preservation of their health), which is provided by the employer. The provisioning process itself is not simple. It depends on many reasons contained in the process of performing work duties. One of which is the application of labor law norms that have entered into force. During the implementation of labor relations, the employer, applying labor legislation, must comprehensively guarantee all rights for his subordinates. The extent to which this will be carried out as much as possible depends on the financial balance of the facility, the employer and the employee who must perform duties related to their safety. Now, more than ever, labor relations are changing and transforming to meet new emerging challenges. This forces the employer to change, improve and transform the labor process in the subordinate object. In order to improve the application of labor legislation in practice, it is necessary to identify difficulties, gaps, imperfections and work with government agencies. As a result, we will achieve the effective application of norms-protection, which guarantees safe work and the effectiveness of labor legislation. The article provides an example of a gap in legislation and a way to eliminate it. This will make it possible to improve labor legislation and provide an opportunity to further improve safety in educational organizations.

On the Issue of the Sectoral Nature of the Employment Contract (In Memory of Professor V.M. Lebedev)

The relevance of the study is due to the need to implement independent legal regulation of social and labor relations by the norms of labor law, taking into account the modern paradigm of labor law, in particular the features of the technological process in specific organizations. The independence of the employment contract and labor law is affirmed. It is noted that the inclusion of an employment contract among civil contracts does not contribute to the development of industrial relations and does not correspond to the rights and interests of workers. It is noted that the regulation of labor relations by sources of civil legislation cannot take into account either the specifics of the activities of certain organizations, or the rights and interests of individual workers. It is concluded that the employment contract can be considered a unique source of labor law, since it is valid only in the relationship between the employee and the employer. It is noted that the relationship between an employee and an employer is not a relationship between two legally equal entities, the obligation of one of which is the obligation to make efforts (the obligation to work, following the instructions of the employer), and the obligation of the second is to pay money for the efforts made. This is not a private law relationship. It involves the power and subordination that characterize public relations. It is indicated that labor legislation does not properly regulate issues of the conditions for the validity of labor transactions and the legal consequences of their invalidity. Attention is drawn to the fact that the discussion itself about the sectoral affiliation of the employment contract should, first of all, have practical significance. It is argued that the need for subsidiary application of civil law to labor relations does not determine the absorption of labor law by civil law. This only presents the mechanism of “legal economy” that the legislator uses.

Legal support of labor protection standards under martial law

Purpose. To study the peculiarities of legal provision of labor protection issues in crisis conditions, in particular in conditions of military operations, to propose conditions-indicators and additions to legislative provisions for the improvement of legal regulation in this area and harmonization of the labor law norms introduced during the war with the existing norms of legislation. Methodology. General and special methods of cognition are used: content analysis – to establish that even indirect influence of military actions is a significant factor in industrial injuries; formal-legal method – to substantiate the need to take into account impact of complex risks on employees’ life and health; special-legal method – to propose proactive approach and system of local regulatory acts; logical generalization – to establish that military actions cause new grounds for the employer’s legal responsibility. Findings. It is indicated that peculiarities of legal provision of labor protection issues in the conditions of martial law require the introduction of changes and additions. It is indicated that the influence of complex risks in cases of threats to employees, which include industrial and military circumstances, needs legal clarification. The legal substantiation for the need to take into account the impact of complex risks in case of industrial injury cases is provided. Legal tools for assessing impact of complex risks, in particular re-certification of workplaces, are proposed. Originality. A proactive approach is proposed for leveling consequences of risks to working conditions by preparing employees for possible threats by implementing systematic, echeloned labor protection policy. The system of local normative acts of the enterprise should be the instrument of this policy. Indicator conditions and additions to legislative provisions are proposed. Practical value. The developed recommendations will contribute to the legal regulation of labor protection and the harmonization of new norms of labor law with the existing norms of legislation in the field of labor protection.

Transformation of Labor being an Object of Social Relations and the Spread of Atypical Forms of Employment

At present, a large-scale digital transformation of social relations is taking place, which affects relations in the labor market. Modern labor relations are faced with a radical transformation of the types of work activities. Labor is increasingly moving into the service sector. Thus, according to the International Labor Organization, 49% of the total number of employees is in the service sector, 29 % in agriculture, 22 % in industry. The sector is characterized by the independence of the person performing the work (as opposed to collective work in social cooperation characteristic of production), as well as a focus on results, which brings labor relations closer to civil law and encourages scientists to reconsider the criteria for classifying certain relations within the scope of labor law norms. The introduction of digital technologies into social production, as well as changes in labor due to the transition of a significant part of the economy from the production sector to the service sector, has given rise to a sharp increase in the so-called precarious and atypical forms of employment. This trend can be seen both globally and in Russia. Thus, the traditional model of labor relations, the main features of which were shaped in accordance with the industrial type of economy, is becoming applicable to an ever-smaller number of workers. In this regard, it is necessary to revise the doctrinal approach to the definition of the labor relationship and its characteristics, the purpose of which should be to develop relevant criteria for classifying relations within the scope of labor law norms, taking into account the expansion of atypical forms of employment.

Downtime under the period of martial law

The article deals with the problem of different interpretation of the same legislative norms of labor law, which were adopted in connection with the introduction of martial law. In order to promptly resolve the issues facing the parties to labor relations, the legislator adopted new and introduced certain changes to existing regulations. The purpose of such changes was to solve the problems faced by the employer and the employee after the introduction of martial law. But some gaps in legislation that were not taken into account by the legislator had the opposite effect and in some cases led to the emergence of a new problem - not just an unequal interpretation of such norms by the parties to labor relations, but also the use by the employer of such an unequal interpretation in their favor. The article also highlights the problem of non-compliance by the employer with the legislatively fixed mechanism for declaring a simple, abuse by the employer of the right to limit the constitutional rights of an employee, although during the period of martial law labor law should remain the guarantor of observance of the rights of workers to work. Based on the analysis of judicial practice that has appeared recently, the main differences in the interpretation by the employer and the employee of the legislative norms governing the issue of downtime are allocated. Disagreements between the parties to labor relations constantly arose in peaceful times, and after the introduction of the martial law even escalated. The analysis of judicial practice, which was formed in the modern realities of life, allows us to conclude that the announcement of a simple employer is not treated as the lawmaker wanted when adopting laws that were designed to regulate labor relations during the martial law. For many employers, downtime has become a way to reduce the financial and economic costs of the entity, it is announced even in the absence of conditions for its introduction. In general, the courts take the side of employees and require employers to prove circumstances that would indicate the existence of conditions for declaring downtime. It is good that the courts fairly resolve current situations, however, it would be advisable to have no prerequisites for protecting rights in court.

Autonomous regulation of work in the gig economy: The first collective bargaining agreement for riders in Sweden

The gigification of work has—in line with global trends—reached the highly-regulated Swedish labour market, with its high degree of both union density and coverage of collective bargaining agreements—and high labour costs. More and more gig workers are becoming union members, and in late January 2021 the first Swedish collective bargaining agreement (CBA) for food delivery platform workers (riders) was concluded between the Transport Workers’ Union and Foodora. The article illustrates to what extent, and how, the inherited formulas for trade union activity and collective bargaining are made relevant for platform-mediated work. The role of old actors and regulatory means are put to use in the ‘new’ labour market. This article provides an analysis of the first CBA in the Swedish gig economy and illustrates how pre-existing labour law norms are both a restraining and an enabling factor for trade unions and collective bargaining in the gig economy. What can be learned about the nature of work in the gig economy or platform-mediated work from the way it has been integrated into the Swedish model for labour relations with its particular traits? Or, what can be learned from the first CBA in the gig economy in the promised land of collective bargaining?

Theoretical approaches to the grounds of differentiation in labour law

The subject.Differentiation in the science of labor law is examined as a feature of its sources; it is named among the principles of the branch and features of the method of legal regulation. The article analyzes the formation and development of the doctrine of differentiation (with an emphasis on its foundations) in the science of Soviet labor law, as well as modern problematic aspects of differentiation in labor law. Alongside the traditional division of the grounds for differentiation into objective and subjective, in the modern science of labor law it is proposed to conduct it on the basis of the structure of the employment relationship and the factor of working conditions. Subjective differentiation is proposed to be associated not only with the personal characteristics of citizens who are the subjects of employment legal relations, but also with the individual characteristics of the employer.Purpose of the study. It is proposed to specify the criteria according to which the grounds for differentiation are divided into objective and subjective ones (whether the need for special regulation is dictated by the specifics of work or is related to the special qualities of an employee). In addition, proposals are made to improve labour law in order to ensure the effective protection of labour rights.Methodology.The research was carried out with the application of the formally legal interpretation of legal acts as well as the comparative analysis of Russian and European legal literature. Method of rather-legal analysis are also the basis of the research.The main results.Thus, the criterion at the foundation of classification of differentiation factors of labour law norms is fairly obvious: whether the need for special regulation is dictated by the specifics of work (that said it does not matter which person will perform it) or whether the specificity of legal regulation is related specifically to the special characteristics of the employee and will appear regardless of the nature of his work.Consequently, employee's loss of special status entails termination of the specific rules of labour law, regardless of the will of the employer. At the same time, it is advisable to amend the Labor Code of the Russian Federation by establishing the obligation of the employee to inform the employer of such legally significant changes within a reasonable time. At the same time, the norms establishing benefits in respect of such employees should cease to be effective from the moment the employee loses his/her special status (e.g. due to removal of disability, termination of powers as a member of an election commission or member of an elected body of a trade union), while the rules imposing additional obligations and restrictions on the employee may be linked to the moment the employee notifies the employer.Conclusions.The authors clarified the criteria for classification the grounds for differentiation in labour law and, as a result, proposed amendments to labour law.

Admission to work and conclusion of an employment contract: issues of protection of labor rights of employees

The article examines the issues of protecting the labor rights of workers during their admission to work and the subsequent conclusion of an employment contract. The article deals with the problems that arise when the employer does not have local regulations on admission to work, the issues of the employer’s self-examination, the introduction of labor compliance and a possible labor audit as an external independent verification of the actions (inaction) of the employer’s officials in compliance with labor law norms.

The content of the unity of the legal regulation of the work of notaries

The article emphasizes that the issue of unity and differentiation of the legal regulation of the work of notaries was practically not raised by scientists, despite the fact that during the independence of Ukraine, the notary has undergone significant changes: the requirements for notaries, the requirements for the protection of their labor and social rights, the requirements for committing notarial actions, new challenges of the time appeared that were not characteristic of Ukraine before: the COVID-19 pandemic, Russia's armed attack on Ukraine etc. The scientists also emphasized that the issue of the unity of legal labor regulation arises precisely in relation to the notary, since the legal status of this category of employees is not sufficiently researched, and there is also no clear understanding of what is common and what is different in the legal regulation of the labor of notaries and other employees , which norms are key in the implementation of such regulation, in which legal relations is a general norm, and in which a special norm, etc. It is noted that the essence of the unity of legal regulation should be considered in close relationship with the differentiation of legal regulation, since unity and differentiation are interdependent concepts that cannot exist separately. The author analyzed scientific approaches to understanding the concept of "unity", considered the main provisions of the Labor Code of Ukraine as a general act of labor legislation and its impact on the work of notaries.
 The scientist identified the main provisions that characterize the unity of the legal regulation of the work of notaries: 1) universality on the universality of labor law norms; 2) provision of a unified approach to the regulation of labor relations of notaries, regardless of their type; 3) unity determines the minimum and general level of labor rights of employees, which also apply to the work of notaries; 4) unity is characterized by an impact on all employees, regardless of the scope of work, the nature of the performed labor functions of employees and their remuneration.